The European Parliament also endorsed rules that introduce common procedures and deadlines for handling asylum applications and basic rights for asylum seekers arriving in the EU, to iron out differences between national asylum procedures. Required minimum reception conditions include a defined shortlist of grounds for detaining asylum seekers, a guarantee of decent detention conditions, and an early assessment of asylum seekers’ medical needs. The rules also allow for Europol to access a database of asylum seekers’ fingerprints.

The Commission, looking to avert an airspace capacity crunch in the next few decades as the number of flights is projected to increase by 50%, proposed to update the “Single European Sky” regulations. Inefficiencies in Europe’s fragmented airspace bring extra costs of close to €5bn a year to airlines and their customers, and the Commission is looking to prioritise safety, improve air traffic management, introduce new procurement rules for support services, and replace the current patchwork of airspace blocks with regional blocks.

It was alleged that Silvio Berlusconi attempted to arrange the assassination of Colonel Gaddafi in 2011. According to the source, a diplomat that was close to Italy’s defence and security department, Berlusconi wanted to prevent damaging revelations about his relationship with the Libyan dictator from coming to light in the event of his capture and subsequent trial. This exposé has been described as “completely false, not credible, absurd and unacceptable” by Berlusconi’s spokesperson.

Greek Prime Minister Antonis Samaras decided to pull the plug on the country’s state television station in the middle of the night. A news programme was cut off mid-sentence when the Hellenic Broadcasting Corporation was suddenly taken off air. The government explained the measure was to save taxpayers’ money from going to a channel plagued by “excesses”. The move has caused a nationwide strike by journalists and protests by the public. The station has refused to cease production, and is now broadcasting online.

Male Swedish train drivers have taken to wearing skirts as part of their uniform in the hot summer months. Their new employers, Arriva, changed the uniform code to ban the wearing of shorts but have conceded that banning the drivers from wearing skirts would be discriminatory.

You will find the excellent seminar handout here: 40 Years On – Seminar 1 – Hand Out

Dr Iyiola Solanke

Readers of EUtopia Law may recall my comments in May on the government plans to introduce a duty upon landlords to check the immigration status of their tenants. I stressed that the proposed checks were likely to breach UK obligations under EU law. Since then, the plans have been modified in order to reduce the administrative burden and limit the reach of the envisaged rules. The intention now is to target the landlord duty only on those renting out properties in certain boroughs that are popular with migrants, such as Ealing and Hounslow in West London.[1] I would contend that this does not rid the policy of problems, but changes them: such a focus is likely to breach the EU Race Directive 2000/43[2], as well as the public sector equality duty (PSED) in Section 149 of the Equality Act 2010.[3]

The EU Race Directive sets out a framework for combating discrimination on the grounds of race and ethnicity. The scope, set out in Article 3 covers both public and private sectors and includes housing. Although the Directive explicitly excludes nationality, the landlord duty as currently envisaged is likely to disproportionately affect British black and minority ethnic communities. As a consequence of the demographics of housing, it is likely to prove difficult to target areas with high numbers of migrant populations without also targeting settled communities of colour. Ealing and Hounslow are examples of this: Lambeth and Stratford in South and East London are others. Beyond the Race Directive, the government should also consider the PSED, under which all public authorities must have ‘due regard to the need to’ not only eliminate conduct prohibited by Act, but also advance equality of opportunity and, perhaps most relevant to the landlord duty, foster good relations. The modifications may therefore be unlawful under national as well as EU law.

Should the government press ahead, it may well find itself subject to a complaint to the European Commission. Under Article 258 TFEU, any person may make a complaint to the Commission if they think that EU rules are not being followed in any member state. It is as easy as completing an electronic form. The Commission receives many such complaints:  it has discretion on how to respond and has learnt to choose its battles. If it chooses to pursue the problem it will enter into a period of communication with the responsible national authorities. The matter may be solved during this phase by administrative action but if agreement cannot be reached after the Commission sets out its position in a ‘reasoned opinion’, judicial action before the CJEU between the Commission and the member state will follow.

The Commission tends to win these infringement cases. Furthermore, since the introduction of penalty payments and lump sum fines under Article 260 TFEU, national authorities incur financial sanctions if they ignore the CJEU ruling and fail to rectify the situation in a timely manner. The Commission requests these sanctions and tends to ask for more rather than less. The figures do not quite match the fines under EU competition law, but remain eye-watering. For example, Italy was ordered to pay a lump sum of 30 million Euro in 2011,[4] which was indeed a fraction of the 1.1 billion Euro demanded of Intel in 2009 for its anti-trust practices under EU competition law.[5] However, it is worth remembering that while commercial undertakings will bolster the EU coffers with their shareholders dividends, disobedient and recalcitrant states will be handing over taxpayer’s money.

If a complaint is made to the Commission about the planned landlord duty, it will again bring the UK treatment of EU migrants under scrutiny in Brussels. Rules introduced in 2005 are currently under investigation: eight years ago, the UK introduced a universal eligibility test for access to a range of social security benefits. There is little harmonisation of social security in the EU but Regulation 883/04[6] calls for co-ordination of social security for migrant workers and their families. The benefits in the UK covered under this Regulation include Child Benefit, Child Tax Credit, Jobseeker’s Allowance, Employment and Support Allowance, Income Support and State Pension Credit. Other UK benefits, such as Council Tax Benefit, Housing Benefit, State Pension Credit and Working Tax Credit, are protected by the UK eligibility test but do not fall under EU social security rules.

The test is universal in the sense that everybody – UK and non-UK nationals from the EU and elsewhere – wanting access to these benefits must pass it. In order to satisfy the so-called ‘habitual residence’, a person must show that they are 1) economically active (working, self-employed, job-hunting or temporarily unemployed, in education or vocational training) or 2) have permanent residence in the UK, or 3) that they are the family member of another EU/EEA national in one of those categories. If they demonstrate this, they are deemed to have a ‘right to reside’ and only then are eligible the above-mentioned UK benefits.

The test is problematic for a number of reasons. First, its name: Union citizens and migrant workers do not gain a right to reside in the UK from national law – the right to enter and remain is granted directly by EU law, as stated in case law from the CJEU:

 ‘The right of nationals of a Member State to enter the territory of another Member State and reside there for the purpose of seeking or pursuing an occupation or rejoining their spouses or families is a right conferred directly by the Treaty or by the provisions adopted for its implementation. The issue of a residence permit does not create the rights guaranteed by Community law and the lack of a permit cannot affect the exercise of those rights. Therefore, the enjoyment of the rights which a member of the family of a worker of a Member State derives from the provisions of Community law may not be made subject to the grant of a residence permit which meets certain conditions.’^[7]

Thus under EU law, EU migrants have an automatic right to reside. The Citizenship Directive 2004/38 provides this to all Union citizens and their families. Article 7 CD introduces a gradual system of residence rights which culminates in the right of permanent residence after 5 years. The conditions associated with each stage become more demanding: in the first three months, there are no formalities to satisfy, but there is also no automatic access to social assistance. Beyond three months, only certain groups enjoy the automatic right to reside – those who are economically active, studying or family members of these (EU and non-EU nationals).

Second, as the Commission argues, the test is indirectly discriminatory – while its wording is neutral and it applies to everybody including UK nationals, UK nationals will nearly always pass it unless they are returning to the UK after a period of emigration. The overwhelming majority of those who will fail it are non-nationals from the EU and elsewhere, even those who have lived and worked in the UK – if at the time of application they do not fall into one of the above-mentioned categories, perhaps due to caring responsibilities, their claim will be refused. A UK-national in the same situation would not be refused as they are likely to be permanently resident. Because the test does not treat nationals and non-nationals equally, the Commission announced last week that it was pressing ahead to the formal stage of the infringement procedure as it is satisfied that the test is contrary to EU rules. Its action is limited to those UK benefits covered by Regulation 883/04 (Child Benefit, Child Tax Credit, Jobseeker’s Allowance, Employment and Support Allowance, Income Support and State Pension Credit).

The UK is not alone – Finland is also in trouble with the Commission for a similar reason concerning access to unemployment benefit. The test requires all workers to have a minimum period of economic activity in order to be eligible for this, but EU migrant workers must in addition have worked in Finland for at least four weeks as an employee or have been self-employed for four months. If they have not done so, periods of employment or self-employment in another member state are not taken into account and the worker is not entitled to unemployment benefits. The Commission considers that this linkage between economic activity in Finland and other member states is contrary to both Regulation 883/04 and the free movement of workers under Article 45 TFEU thus Finland also received a ‘reasoned opinion’ last week: the Commission has asked the government to remove the discriminatory condition affecting migrant workers.[8]

The Commission action does not indicate that the UK, Finland or any other member state may not regulate access to these benefits: the fear of ‘benefit tourism’ is recognized in EU law and the rules in Regulation 883/04 allow social security to be limited to those who genuinely have their home in the member state. This was recently re-affirmed by the CJEU in Salgado Gonzalez:^[9]

‘…according to settled case law, member states retained the power to organise their social security schemes. Therefore, in the absence of harmonisation at EU level, it was for the legislation of each member state to determine, in particular, the conditions for entitlement to benefits. In exercising those powers, member states had none the less to comply with the law of the European Union…’

Compliance requires agreement with Article 4 of the Regulation 883/04, which specifically prohibits indirect discrimination. Indirect discrimination can of course be justified under EU law and it is likely that the government has already tried to demonstrate that there is an objective reason for the rule which pursues a legitimate aim in a manner that is both appropriate and necessary.[10] However, the fact that the Commission has now sent a ‘Reasoned Opinion’ to the UK and Finland indicates it is confidence that any justification will fail before the CJEU. Having received this formal Commission request to stop the application of the test and bring the rules in line with EU law, these member states now have two months to respond. After this, the Commission will probably refer the case to the CJEU and judicial proceedings will begin.

The same EU principles will apply to the planned landlord duty: EU law does not preclude national action to prevent abuse of the immigration rules but state action must respect law agreed in Brussels. If the planned legislation fails to do so, an Article 258 TFEU process is likely to follow on the European front, as is a judicial review on the domestic front.  It might save time and will definitely save money if this can be avoided. The latter must be a priority for the austerity-driven government.  Fortunately, time allows for the policy to again be re-considered before it is set down in legislation; this is to be recommended otherwise the desired savings in national administrative costs may ultimately be lost in EU infringement fines.

Angus MacCulloch

There has been debate about the legality of minimum per-unit (MPU) alcohol pricing in the UK, since the SNP-led Scottish Government first suggested adopting such a measure back in 2009. I contributed to the debate on several previous occasions, but now there is a little more substance to be discussed after the Outer House of the Court of Session, on 3 May 2013, handed down its judgment in The Scotch Whisky Association and Ors, Re Judicial Review of the Alcohol (Minimum Pricing)(Scotland) Act 2012 [2013] CSOH 70. The judgment answers some of the questions posed, but, sadly, it leaves yet more unanswered. I doubt this will be the last that we see of minimum alcohol pricing before the courts.

The SWA petitioned the court challenging the legality of the Alcohol (Minimum Pricing)(Scotland) Act 2012 and a proposed Order under that Act which would have set the minimum price at 50p per unit. Under that Order the minimum price for a product would be set using the formula: MPU x strength x volume in litres x 100. For one of my favourite red wines this would mean a minimum price of £5.62 per bottle (£0.50 x 15% x 0.75 x 100). For a can of Stella Artois the minimum price would be £1.14 (£0.50 x 5.2% x 0.44 x 100).

The Petitioners advanced three lines of argument: 1) that the provisions were in breach of the Acts of Union, 2) that the Act was outside the devolved legislative competence of the Scottish Parliament, and 3) that the Act was outside the competence of the Scottish Parliament as it was incompatible with EU Law. In this post I shall be concentrating on the EU law arguments.

Before delving onto Lord Doherty’s judgment there is one point of interest that is worthy of mention. Although they are not named as a party the European Commission was a significant player in this case. The Scottish Govt, as part of their obligations under the Technical Standards Directive 98/34/EC, notified the Draft Order to the Commission. Several Member States responded to that draft Order and the Commission delivered to the UK Govt and other interested parties a detailed Opinion. That Opinion has not been made public, and I have not had the benefit of having sight of it, but the judgment sets out, at [29], that the Commission:

noted that national legislation imposing minimum pricing falls within the ambit of Article 34 TFEU; that the draft Order was capable of having an adverse effect on the marketing of imported goods, and was a measure having an effect equivalent to a quantitative restriction in so far as it prevented their lower cost price from being reflected in the retail selling price.

Lord Doherty was clear, at [30], that the Opinion of the Commission was of interest, but was not binding on the court. However, its position was accepted by both the Petitioner and the Lord Advocate and there was no argument as to the compatibility of a MPU with Art 34 TFEU. That itself is disappointing from a wider EU law perspective. There is a clear argument that a minimum selling price is a ‘selling arrangement’, within the terms of Cases C-267 & 268/91 Keck, and therefore could fall outside the prohibition in Art 34 TFEU. The parties may have been convinced by the Commission’s reasoning why Keck did not apply in this case, or they may have decided that the matter was not worth developing before the court, but I would have been very interested to hear argument on that point. I still cannot see how a minimum price can be anything other than a selling arrangement; therefore, the only issue can be that the Commission perceives it to be a ‘dynamic’ selling arrangement which has differential impacts, in fact, on imported and domestic products. Is this because domestic production normally retails at a price above the minimum and the Commission fears that cheaper imported alcohol is likely to be affected more dramatically by losing its competitive advantage? Until these matters are discussed in a more public forum we will have to continue to speculate; although [64] strongly suggests that this was the decisive issue.

The rest of the discussion was on the justification of the breach of Art 34 TFEU in relation to public health and whether the measure was proportionate. The petitioners argued, at [33], that raising the price of alcohol which is cheap relative to its strength would be effective in targeting hazardous and harmful drinkers, and in any event there were less restrictive measures which could be used to achieve the legislative aims – namely an increase in general excise duty. They also suggested that the intensity of review in these cases, those involving price-fixing, should be high and that the Scottish Parliament should not be accorded any margin of appreciation or discretion.

The approach to this issue which was adopted by Lord Doherty is an interesting one when considered from the more general EU law perspective. The first point of interest is in the first paragraph of the judgment looking at the ‘correct approach to justification’ [48]. Here he adopts the form of language preferred in the Case C-110/05 Trailers judgment:

‘The crucial question is whether there is an objective justification for the measures which are under attack’.

The CJEU’s adoption of the ‘objective justification’ approach in Trailers has led to speculation that it might herald a move away from the more traditional ‘necessity’ test used in relation to the Case 120/78 Cassis ‘mandatory requirements’. Lord Doherty does seem to rely more heavily on Trailers, it being quoted at length, via Sinclair Collis v Lord Advocate [2012] CSIN 80, at [50]. I could certainly be accused of reading too much into this distinction as the Trailers approach is conflated with the mandatory requirements at [51], but nonetheless I find it interesting that the concept of ‘objective justification’ has quickly been adopted on the ground. It is certainly arguable that as a test it affords a greater ‘margin of appreciation’ to the Member States where they seek merely to prove that their measures are justified, rather than strictly ‘necessary’. Lord Doherty’s acceptance of this level of margin of appreciation or discretion [52], taken from Trailers as explained by the Inner House in Sinclair Collis, certainly accords with a somewhat less ‘strict’ application of proportionality that we may have seen in previous CJEU cases examining Cassis style product requirement cases.

Lord Doherty went on to examine the purpose of the measures adopted and looked at the preparatory material in relation to the Bill and its Impact Assessment. He went on to find that the measure was aimed at ‘alcohol misuse and over consumption’ [54] pointing out the level was chosen to ‘strike a reasonable balance’ between public health and intervention. He then went on to split the discussion of proportionality in to three parts: ‘legitimate aims’, ‘appropriate to achieve those aims’, and ‘necessary’. It was clearly accepted that alcohol consumption is a health problem in Scotland. Lord Doherty rejected the argument the measures were not an appropriate way to address the problems identified. The main body of discussion then fell to whether the measures were ‘necessary’ in the sense that, ‘the legitimate aims of the measures are capable of being achieved equally effectively by other measures which create less of an obstacle to intra-Community free movement’ [61].

Lord Doherty held that the evidential onus was on the petitioners to show that their suggested alternative measures would be as effective as minimum pricing and then for the respondents to show that the alternate measures would not be less of an obstacle to free movement. He then found that the respondents had not discharged the second burden and therefore the only question to be decided what whether the alternate measures would be as effective as minimum pricing. After reviewing the evidence presented in in the Impact Assessment he noted that general excise duties are constrained by EU law to have single rates for beverages with a range of alcohol content – this makes is impossible to have rates that change directly in relation to alcohol content; many of the lesser strength products would have higher prices than under minimum pricing. He concluded, at [71], that:

A system which results in higher prices for higher strength alcohol appears to be more consistent with the legitimate aims than one which will tend to result in similar prices for alcohol of significantly different strengths … Under minimum pricing alcohol which is cheap relative to strength can be targeted. The directives preclude excise duty being used in that way.

The ability of MPU to target lower priced alcohol was central to the rest of this discussion. General duty increases would have an impact on general alcohol consumption; Lord Doherty took the intention of the measures not to be to lower general consumption, but to target the harms of lower priced alcohol [79]:

In my opinion there is inherent in the Act and the proposed Order a judgment as to the level of protection of health and life the measures are designed to achieve. There is also a judgment that the best way of maximising reductions in sales, consumption and harm is to focus price increases on cheaper alcohol.

He also went on to the role of other considerations when the Scottish Govt decided what level of health protection they wanted to adopt:

Socio-economic considerations, such as concerns for the on-trade or for moderate drinkers, could not be used to justify measures which were more restrictive of free movement than alternative measures which were equally effective in providing the desired degree of protection of health and life. However, they are matters which may legitimately be taken into account in deciding the level of protection of health and life the Parliament and the Ministers wish to secure. The decision as to how far to go in protecting health and life inevitably involved striking a balance between health benefits and other interests. It was open to the Parliament and the Ministers to take into account likely impacts on moderate drinkers and the on-trade when deciding on an appropriate and proportionate level of protection of health and life.

This line of argument is potentially controversial – conflating the health and socio-economic rationales which may, or may not, fall outside the ‘mandatory requirements’. This brings to mind the debate surrounding the much stricter application of the proportionality test in Case 302/86 Danish Bottles where the level of environmental protection selected by Denmark was deemed disproportionately high by the CJEU. Can the reason the Scottish Govt decided to target lower priced alcohol be taken into account alongside its health impact when considering proportionality? Is this what the CJEU has in mind when they talked about a ‘margin of appreciation’ in Trailers? The Outer House has adopted a formulation in this case where proportionality tests the effectiveness of the measure adopted according to the purpose set out by the Member State; but gives the State a real ‘margin of appreciation’ determining what the specific purpose of that measure should be – as long as it is appropriate to meet a legitimate aim in either Art 36 TFEU or one of the ‘mandatory requirements’.

This, I think, is where the decision is potentially problematic. The EU Case law does not make it clear that proportionality has no role to play in deciding the level of health protection that is suitable, the debate surrounding Danish Bottles and the other 80s environmental cases being good examples, but in this case the analysis of whether the measure was ‘necessary’ only took place after the ‘appropriate’ level of protection was decided. I’m not sure that the CJEU would always allow a MS such a wide margin of appreciation in that regard if it could, in effect, side-line the operation of the proportionality test.

If the Scottish Govt now goes ahead with the Order it will no doubt generate further challenges. If there are such cases it will be an interesting opportunity to see what connections and contradictions exist between the different lines of thinking in the Cassis, Keck, and Trailers lines of case-law.

Aidan O’Neill QC of Matrix represented the SWA in the case discussed in this blog. He has had nothing to do with the writing of this post.. Follow the author on Twitter: @Angus MacCulloch

Alberto Alemanno

In the aftermath of the last EU summit, one of the many provisions proposed by the European Commission within the framework of its action plan for the olive-oil sector unexpectedly gained global attention.

The provision, which had already won member states’ backing, would have required that restaurants serve olive oil in sealed, clearly labelled and non-reusable containers, instead of relying on refillable containers. The UK’s prime minister, echoed by his Dutch counterpart, publicly attacked the Commission’s adopted proposal by dismissing it as “exactly the sort of area that the European Union needs to get right out of”. While Dacian Cioloş, the European commissioner for agriculture, initially defended the proposal as a way to promote quality olive oil and to protect consumers from fraud, he rapidly withdrew the measure, declaring that the ban was “not formulated in such a way as to assemble widespread support”.

Regardless of what you think about the merits of this proposal, the story it generated calls for closer examination. The tale of the proposal captures many of the misperceptions surrounding the EU’s work, but also reveals how a rule that has the member states’ blessing can be overturned by a minority.

First, it illustrates the lack of understanding of the scope of the regulatory authority granted to the EU. While the Commission proposes around 60-70 legislative acts, it adopts – together with the member states – around 2,000 measures implementing previously agreed legislation every year. The olive-oil proposal fell into the latter category.

Second, it confirms politicians’ tendency to fuel misinterpretations of the EU to suit their immediate political calculus. In particular, it shows how easy is to turn the public against the EU by depicting a rule supposedly aimed at consumer protection as the umpteenth attempt to over-regulate EU citizens’ lives. As such, it illustrates once more the cynicism of leaders who blame the Union for systematically over-reaching the exercises of the very same regulatory powers that they have entrusted to the EU.

Hence, the trivial, yet frequent, claim that the EU, at times of economic difficulties, had better things to do than regulating bottles of olive oil carries limited credibility. Denying multi-tasking ability to a political system is like suggesting that when one of us breaks a leg she should not breathe anymore.

More remarkably, this story teaches us that even once a rule has gained the majority of member states (even though not a qualified majority vote) and has been adopted, it is still possible to get it withdrawn if political leaders of the countries that were left in minority are capable of spinning that story as the latest EU attempt at ‘regulating everything’.

The most pernicious effects of this approach are made possible by widespread ignorance and profound lack of understanding of the EU’s basic functioning. Attacked by the disease of Euroscepticism generated by a few political leaders, public opinion behaves like a human body whose immunity system is deficient. By not having the right antibodies, public opinion does not react to the disease, lets it gain ground and even accelerates its spread.

It is the task of the Commission, as the holder of the monopoly of legislative initiative, to promote the development of the right antibodies against this manipulation of public opinion.

To do so, the Commission should systematically engage in EU-wide stakeholder consultations while assessing the impact of its proposed rules.

Unfortunately, in this case there was no impact assessment of the contested provision. This would have allowed the Commission to not only engage into a more inclusive and evidence-based exercise, by gathering more data on the socio-economic as well as environmental impact of its proposed measures, but also to confer to it some more ‘legitimacy’ vis-à-vis the relevant actors.

As Cioloş conceded, in the absence of an impact assessment, the Commission could not effectively illustrate the merits nor prove the possible effects of the rule. What is more, he could not claim to have consulted with all relevant stakeholders.

This explains why the Commission, which proposed the rule and mobilised a majority of member states in support of this measure, eventually did not stand by its own proposal.

Only a highly formalised, evidence-based and participatory decision-making process could provide the right antibody against politically driven Euroscepticism. At a time of growing disaffection towards the EU, this should be the lesson learned for the Commission from the olive-oil tale.

Dr Iyiola Solanke

May has not been a good month for policing in the EU. The service that they provide has been under the spotlight in various member states. The policing of racist violence is on trial in Germany, where the process against neo-Nazi Beate Zschäpe began this month. The alleged co-founder of the National Socialist Underground (NSU) terrorist group is accused with four other people of involvement in 10 murders of Turkish-Germans between 2000 and 2006, as well as in a bomb attack on a Turkish-German district of Cologne. The NSU had apparently believed that the German nation was under threat and had decided to save it by randomly executing Germans of Turkish descent. Each victim was shot: in the head, through the face, in the neck. The first victim was Enver Simsek, a flower seller from Nuremburg – he was found in the back of his delivery van with eight bullets in his body. He had been assassinated – shot at close range and his body fired into when he was already immobile. The last victim was Halit Yozgat, murdered whilst at work in his Internet cafe in Kassel. On trial is not only Zschäpe but the German police: they refused to acknowledge a racist motive behind the murders and treated them instead as gang killings, suspecting the families instead of supporting them.[1] The catalogue of errors by law enforcement officials ensuing from that basic blindness has led to comparisons with the murder of black teenager Stephen Lawrence in Britain 20 years ago and similar accusations of institutional racism.

The continuing problem of racist and violent policing is highlighted by riots in Sweden. Six nights of violence in May exposed the hidden tensions between the police and minority ethnic communities: schools have been set ablaze, businesses smashed up and stones thrown at police. The battles have left the international image of peaceful Swedish integration that we all believed in tatters – as is often the case it was only the voiceless victims who knew the reality. The violence has apparently been a long time coming: police have for years harassed black and ethnic minority citizens, and even those white Swedes associated with them. As in Germany, blinkered police interpretation played a leading role: arriving home with his Finnish wife after being chased by a gang of youths, a 69-year-old Swede of Portuguese origin emerged from his house brandishing a knife to confront the marauders; police arriving on the scene assumed they were dealing with a situation of domestic violence, broke into his home and shot him dead, in front of his wife. Who needs Elizabethan drama? The 21^st century is littered with its own tragi-farcical material. The police then apparently inflamed the situation by calling the rioters ‘monkeys’ and ‘negroes.’[2]

Participants who attended the Matrix/ Leeds seminar on black experiences of policing in May 2012 may not be surprised to hear of these events in Germany and Sweden. The enduring authenticity of the story told by Embi Jallow of his experiences as a black man living in Sweden, and the sickening photos of the burnt body of Oury Jalloh in a German police cell will have already raised questions about the service provided by the police to black and migrant Europeans in other member states. Those who have seen the results of the first pan-European survey on racial discrimination in the EU will be aware that racial profiling is commonplace and that, unsurprisingly, most black and minority Europeans do not bother to report crimes against them due to a lack of trust in the police. If the Eurovision Song Contest were the Eurovision Policing Parade, there would be many forces in the EU receiving zero points.

This all adds up to a huge deficit in the state of policing in the EU. Fortunately policing is on the EU agenda – since the declaration of the Area of Freedom Security and Justice, co-operation in criminal matters has led to the adoption of an internal security policy, the Stockholm Programme, and the creation of agencies such as Frontex, Eurojust, Europol and  CEPOL, a training college for the development of a European approach to policing. Unfortunately tackling racist and violent policing is not part of that agenda: although human rights are mentioned – in general and somewhat superficially – the specific problem of race and policing is absent. There is therefore no indication that the policing experiences of black and minority ethnic Europeans have been acknowledged by leaders in the EU or that the interests of this significant part of the population have been integrated into the development of law and policy on policing in Europe. As in 1957 when the original Treaty of Rome was signed, the interests of these Europeans are subject to a constitutional omission.

Were they minded to do so, how could EU leaders address violent and racist policing in the EU? This question is especially pertinent now, as the legal framework for EU action in this area is under review. In March the Commission put forward a proposal[3] to reform the legal basis of law enforcement in the EU. Significantly, the objective is to enhance the democratic legitimacy and accountability of Europol by giving the European Parliament control over the activities of the agency. In addition, in order to streamline policing in Europe, the Commission has suggested a merger between Europol and CEPOL. A new ‘European Union Agency for Law Enforcement Cooperation and Training (Europol)’ will replace the existing Europol[4] and CEPOL[5] – the new Europol will absorb CEPOL and adopt its task to ‘improve mutual cooperation among law enforcement authorities in the European Union, to strengthen and support their actions as well as to deliver a coherent European training policy.’ As this process is taken forward there are at least five ways in which the interests of black and minority ethnic Europeans can be accommodated:

1. The Police Academy and the Fundamental Rights Agency (FRA)

Article 9 of the Commission Proposal establishes a new police agency, the Europol Academy, to replace CEPOL. The Academy is to be a ‘department’ within Europol responsible for the development, delivery and co-ordination of training for law enforcement officers. The Academy will provide training to officers working in cross border serious crime, terrorism, high-risk public order and sports events, humanitarian Union missions, as well as training on general law enforcement leadership skills and language competence.  This training should be conducted in close collaboration with the FRA. The FRA currently co-operates with CEPOL in its training on human rights but such training should be more closely integrated into the work of the Police Academy of a more powerful Europol. Given the importance of law enforcement across the EU, the FRA should probably be at the centre of the new Europol itself, ensuring that all of its activities are informed by a respect for human rights. Indeed, preambular paragraph 62 of the Commission proposal states that the Regulation ‘respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.’ Placing the practice of human rights at the centre in both the EU approach to policing and the training of police personnel in the EU would have an extremely positive impact on democratic legitimacy.

2. Work Priorities of the Police Academy

The Commission has also proposed a ‘’European Law Enforcement Training  Scheme’ (LETS)[6] to establish training on EU-related issues and make this systematically available to all law enforcement professionals of all ranks in all member states. The expectation is that the Police Academy will implement the Training Scheme in co-operation with national training academies. The four priority EU training strands identified at present include: ensuring basic knowledge of law enforcement co-operation in the EU; enhancing bilateral and regional policing co-operation; developing training on specific themes such as trafficking, cybercrime and corruption; and training for civilian missions outside the EU. A specific strand on non-racist policing should also be introduced to ensure that all law enforcement officers in the 28 member states deliver high quality policing that is not only efficient and effective but also informed by the pro-active rejection of racism. Ensuring anti-racist policing is as important for the democratic legitimacy of law enforcement elsewhere in the world as within the EU.

3. Chapter Against Racial Profiling

As mentioned above, research produced by the FRA demonstrates that racial profiling is a significant problem in many member states. EU leaders should recognize this with a Chapter in the Proposal focusing on erasing this pernicious policing practice across the EU. The contents of the Chapter Against Racial Profiling could be modeled upon the End Racial Profiling Act 2013, proposed by Ben Cardin of the US Senate. Like the Cardin Act, the Chapter should be designed to enforce the constitutional right to equal protection by eliminating racial profiling. It would create a legal prohibition on racial profiling, introduce obligatory training on racial profiling as part of law enforcement training and create a process to monitor racial profiling by asking all member states to collect data on routine activities. A ‘Racial Profiling Unit’ (see below) could be required to provide regular reports to assess the trends of racial profiling. Such a measure would immensely advance the democratic legitimacy of the EU as a whole, not just Europol, especially in the eyes of its black and ethnic minority citizens.

4. Data collection by Europol

A key task for Europol will be the gathering of data from all member states: one of the objectives of the Commission Proposal is to meet the goals of the Stockholm Programme by making Europol ‘a hub for information exchange between the law enforcement authorities of the Member States.’ Under Article 4, Europol will ‘collect, store, process, analyse and exchange information.’ Each member state will create a ‘National Unit’ to liaise with Europol; the National Unit is to provide Europol with ‘the information necessary for it to fulfill its objectives’ (Article 7). In addition, Europol will be able to directly retrieve and process information from publicly available sources and national information systems (Art 23). A consequence of racial profiling in the member states is that black and ethnic minorities are over-represented in national police data. The Commission proposal does not acknowledge this problem although preambular paragraph 62 in its Europol Package states that the Regulation ‘respects the fundamental rights to protection of personal data and the right to privacy as stipulated in Articles 8 and 7 of the Charter, and Article 16 of the Treaty.’ The legitimacy of data used by Europol will be unsafe if it does nothing to remove or at least ameliorate the bias arising from national policing practices. The proposal should therefore directly mention this problem and in order to address it, mandate a specific unit – the Racial Profiling Unit – to help those affected to have their details erased. The Racial Profiling Unit will be created as a formal EU agency in the Chapter Against Racial Profiling mentioned above.

5. Extend the EU Race Directive 2000/ 43 to include policing

Finally, action can be taken beyond the Europol Package. As I have mentioned elsewhere, the time may have come for the material scope of the Race Directive to be extended to cover policing. Events in Germany and Sweden demonstrate that the omission leaves victims helpless against poor policing practice within the member states. Were this to be included, all member states would be obliged to take action against institutional racism, just as Britain did in 2000. This reform would enhance the legitimacy of the EU as a whole by showing that it was serious about integrating Europe’s racial and ethnic minorities into the ‘peoples of Europe.’

EU leaders must take notice of their black and minority ethnic citizens as they reform the governance structures to develop a European approach to policing. Doing so would be a useful first step to build the bond of trust between police across the EU and these Europeans. It is not just in law, but also in everyday police practice that the democratic legitimacy and accountability of Europol to all European citizens needs to be enhanced.

Matrix Chambers and the School of Law, University of Leeds will be hosting a Roundtable on July 18^th 2013 to explore these issues. Panellists include Paul Abbey (Left Alliance, Finland); Professor Ben Bowling (Kings College, London); Eva Cossé (Human Rights Watch); Embi Jallow (ENAR, Sweden); Aidan O’ Neill QC (Matrix Chambers); Sunny Omwenyeke (Loughborough University). Registration at i.solanke@leeds.ac.uk .

In other news, we have been asked to give a plug for the new Working Paper series of the Swedish Competition Authority, which we are very happy to do: it looks like a great initiative.

Finally, do think about attending the joint UKAEL/ISEL conference taking place on Friday 21 June, organised by our good friends Philippa Watson and Donogh Hardiman: it promises to be an interesting and topical event.

Dr Dorota Leczykiewicz

Constitutional conflict is a leitmotif of the relationship between EU law and national law. Courts of EU Member States are under a dual obligation of loyalty. On the one hand, they need to apply and respect their own laws, but on the other, they also need to ensure effectiveness of norms of the EU legal order. In the event of conflict, the principle of supremacy of Union law tells them to disapply conflicting national rules. Member States’ courts to a large extent accept that obligation, although they usually exclude from its ambit conflicts between EU law and state constitutions. For this reason, the best tactic for the Court of Justice of the EU is to avoid situations where EU law would require from national courts to act in violation of the state constitution. The Court of Justice has developed various techniques to deal with such instances of potential constitutional conflict. The controversial issue may be brought outside the scope of EU law (Grogan), EU law may be recognised to protect the same constitutional right and to the same far-reaching extent (Omega Spielhallen), or the principle of respect for national identity, as laid down by Article 4(2) of the Treaty on the European Union, may be used to allow national norms to remain applicable even when they undermine effectiveness of an EU norm (as I discuss here). In a recent judgment in the Melloni case(Case C-399/11, Judgment of 26 February 2013) the Grand Chamber of the Court of Justice of the EU decided not to use any of these techniques. Instead an EU Framework Decision was held to prevail over the Spanish Constitution.

Mr Melloni, while present in Spain, was facing trial for a bankruptcy fraud before an Italian court. A Spanish court authorised his extradition to Italy but in the same time released him on bail. Mr Melloni fled and never appeared before the Italian court. The trial took place in his absence, although in the presence of lawyers that Mr Melloni had himself appointed. Mr Melloni was convicted. The decision was upheld by all levels of Italian judiciary. Some years later Mr Melloni was arrested by the Spanish police. In 2008 a European Arrest Warrant was issued by the Italian court requesting Spanish authorities to surrender Mr Melloni. The Spanish court authorised the surrender, after which Mr Melloni lodged a petition for a constitutional protection before the Spanish Constitutional Court. He claimed that if he was surrendered to Italy Article 24(2) of the Spanish Constitution guaranteeing the right to a fair trial would be violated. The right to a fair trial, as protected by the Spanish Constitution, entailed that he should not be surrendered without Spain imposing on Italy a condition that he would be able to challenge the result of his Italian trial, a possibility which did not exist under Italian law.

The right to a fair trial

Melloni may be read as a case concerning merely the scope of the right to a fair trial. Should Mr Melloni have a possibility to ask for a retrial in Italy? Does the fact that he chose his lawyers and was represented by them during a trial from which he was absent justify his surrender to Italy to execute a custodial sentence even if he was unable to ask for a retrial? The European Arrest Warrant (EAW) Framework Decision (2002/584 as amended by Framework Decision 2009/299), on the basis of which Mr Melloni’s surrender would take place, does offer some protection to the right to a fair trial. It provides that the executing judicial authority may refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence if the convicted person did not appear in person at the trial. This discretion is however excluded in three sets of circumstances, including when the person was summoned in due time and informed that a decision might be handed down if she did not appear for the trial, or she had given a mandate to a legal counsellor to defend her at the trial and was so defended. In these circumstances, the national court is under an obligation to execute the European arrest warrant and is not allowed to impose any additional conditions. In comparison, the Spanish Constitutional Court interpreted Article 24(2) of the Spanish Constitution to mean that extradition to countries which allow convictions in absentia without making surrender conditional upon the convicted party being able to challenge the conviction would be ‘an ‘indirect’ infringement of the requirements deriving from the right to a fair trial’. It follows that the protection offered by the Spanish Constitution is broader than that offered by the EAW Framework Decision. It is also worth noting that the Spanish Constitutional Court made no attempt to interpret Article 24(2) restrictively so as to avoid conflict with EU law. The direct incompatibility between the Spanish Constitution, as interpreted by the Spanish Constitutional Court, and the EAW Framework Decision meant that Spanish authorities had no way of reconciling their obligations stemming from EU law, on the one hand, and national law, on the other. The limits of the principle of EU law supremacy were to be tested once again.

Supremacy and fundamental rights, yet again…

The conflict between the EAW Framework Decision and the Spanish Constitution led the Spanish Constitutional Court to ask the Court of Justice of the EU for interpretation of obligations of national courts under EU law. Three points should be made here. First, the EAW Framework Decision harmonises exhaustively the grounds on the basis of which recognition of decisions of courts of other Member States following a trial at which the person concerned did not appear in person may be refused. Secondly, the right to a fair trial is in the EU legal order a ‘fundamental right’, now guaranteed also by the Charter of Fundamental Rights (Article 47). Thirdly, the Charter includes a provision according to which ‘Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law … and by the Member States’ constitutions’ (Article 53).

The Court’s judgment in Melloni is clearly motivated by the desire to protect the EAW regime and its effectiveness. The Charter right to a fair trial is interpreted narrowly to ensure that the regime is compatible with it. The objective of the EAW Framework Decision, which is the improvement of mutual recognition of judicial decisions, is held to justify the restrictions imposed on national courts’ competence to refuse the execution of a European arrest warrant in a situation where the person being surrendered is unable to apply for a retrial. Yet, this conclusion is reached by the Court without any proportionality review, which raises questions as to compatibility of the Court’s reasoning with Article 52(1) of the Charter. The standard of protection of the Charter right to a fair trial is in this context the same as that defined in the Framework Decision. National constitutions are denied any role in the interpretation of the Charter right. According to the Court, national authorities and courts can apply national standards of protection of fundamental rights, a possibility envisaged by Article 53 of the Charter, only is so far as ‘the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law [were] not thereby compromised’. This means that EU secondary law prevails over state constitutions. Whenever application of national constitutional standards would affect effectiveness of an EU act national courts have to refrain from using them. Member States’ courts are effectively prohibited from ‘casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision’.

The future of constitutional conflict

The significance of the Melloni judgment should not be underestimated. While its immediate effects could be restricted to the particular EU legislative act in question, the judgment sends a very worrying message about the way in which the Court of Justice sees its role as a constitutional review court. The starting assumption of the Court is not only that the EU legislator has respected fundamental rights but also that the scope of protection of fundamental rights, including those recognised in the Charter, should be determined on the basis of an act of secondary law. If this method was applied more broadly, an EU act could never be found invalid for breaching fundamental rights. The judgment in Melloni is also a step towards the centralisation of standards of fundamental rights protection in the EU, at least in areas where Member States’ authorities are implementing EU acts. When such assiduous centralisation leads to the lowering of protection which national courts are allowed to offer further instances of constitutional conflict are only a matter of time.

This article originally appeared on the UK Constitutional Law Group Blog and is reproduced here with permission and thanks.

Dr Jeremias Prassl

Frank S Benyon (ed), Services and the EU Citizen (Hart Publishing: Oxford, 2013) £55

The most recent volume in Hart Publishing’s Modern Studies in European Law series is a collection of essays edited by Frank S Benyon. Drawing on a series of workshops held at the European University Institute in 2010, its chapters cover a broad range of services regulated under EU law – from Electronic Communications and Broadcasting to Health Care and Transport. The overall goal of the project is an interesting one: to consider the potential interaction of two key topics in EU law – the notion of Union citizenship (Art 20 TFEU), and consumer protection (notably in Art 114(3) TFEU). As the editor puts it in his introduction, might ‘consumer advantages [...] not be seen as forming a constituent part of the rights of the EU citizen’?

In keeping with the theme of my recent posts here at EUtopiaLaw, this review focuses on the two substantive chapters dedicated to transportation and travel law, as well as the final chapter, in which the editor draws together the findings of the workshop series. This is a particularly difficult area in which to explore the theme of citizenship: travel is, by definition, not limited to EU citizens: the European Union sees just over a third of worldwide air passenger traffic pass through its airports each year. In drawing a similar conclusion in the final chapter, Frank S Benyon nonetheless makes the crucial point that consumer protection in the field of services is amongst the most directly relevant EU achievements for individual citizens.

The chapter contributed by Mikko Huttunen, Minister Counsellor at the EU’s Permanent Mission to the WTO and long-term Commission official, tells the interesting story of the early days of the EU’s involvement in transport regulation. Whilst transport was included in the Treaty of Rome as one of the three original common policies (alongside agriculture and fisheries and the common commercial policy), Union action came comparatively late, and only after a jolt in the ECJ’s 1985 decision in C-13/83 Parliament v Council.

The development of passenger rights can be characterized as a two-stage process: Huttunen shows how, first, market liberalisation in and of itself brought significant improvements to the daily life of air passengers – be it through the direct deregulation of routes and fares, or the liberalisation of the market in aviation services (and ancillary aspects such as ground handling and aviation security) more broadly. This perspective is frequently forgotten in today’s dialogue on aviation regulation, even though, as the author correctly notes ‘[t]he emergence of EU passenger rights cannot be understood without the context provided by the single EU aviation market’ (p 15). It was only at a subsequent, second, stage that the Commission’s attention turned to ‘Consumer Protection Measures Proper’: Regulations whose primary objective was to protect the consumer as air passenger and deal with the consequences of the liberalised EU aviation market from the consumer’s perspective more generally.

This two-stage analysis provides concrete evidence for an interesting framework that could be used in future disputes under the ever-contentious Regulation 261/2004, which grants passengers extensive rights in the case of adverse events such as flight delay or cancellation. Huttunen blames much of this litigation on an unclear mix between passenger and industry interest: the ‘tricky balance’ between market liberalisation and consumer protection (p 24).

In a subsequent chapter devoted to Travel and Tourism, Jens Karsten (a practitioner with bxl-Law in Brussels and former Commission official) reiterates several of these themes and puts them in a broader context. Maritime law (notably Regulation 392/2009 on the liability of carriers of passengers by sea in the event of accidents, which incorporates the Athens Convention of 2002), for example, is used to illustrate the ‘typical patterns of EU passenger law’, where the ‘Community legislator was quick to adopt the justification used for legal intervention in consumer markets for the purpose of legitimising its interference with the passenger-carrier relationship’. This, the author argues, constitutes a ‘novel – and, for the drafters of transport conventions, largely unforeseen – development that changed the perception of all layers of passenger law [...] to become a hybrid of transport law and consumer law’ (pp 36-38).

This ‘Rise of Passenger Law’ is then charted through an excellent, if somewhat descriptive, overview of key developments, which neatly brings together a comprehensive list of pending and decided cases (as of 2012; for an up-to-date search click here) as well as relevant Regulations and Directives, presenting them in the context of international agreements. A key difference from other areas of consumer services regulation emerges: norms are laid down nearly exclusively in conventions and regulations, rather than ‘Directives which go through the filter of the national legislator in transposition.’ This is said to make ‘faults in their structure more glaringly visible’ (p 45).

This overall perhaps more critical tone becomes clearer in Karsten’s discussion of the ECJ’s leading case law: Case C-344/04 ex parte IATA and ELFAA, (where the Court held that Regulation 261/2004 was fully compatible with the Montreal Convention, as ‘the assistance and taking care of passengers envisaged by [the Regulation] in the event of a long delay to a flight constitute […] standardised and immediate compensatory measures, [and are therefore] not among those whose institution is regulated by the Convention’ [44]), for example, is characterised as ‘Bending the Rules’. The subsequent decision in Case C-402/07 Sturgeon (where compensation for delayed passengers was interpreted into the Regulation on grounds of non-discrimination) is said to be an outright breach of existing rules. Writing in the run-up to the latest round of challenges from various Member State courts, the author expresses his hope that the ECJ ‘would have the courage to overrule what has earlier somewhat negligently been decided’. This would have been a ‘novelty indeed, but worthwhile for maturing the relationship of European law and international law’ (p 44).

The hoped-for change of tack did not take place, of course: in October 2012, the Court confirmed its earlier jurisprudence in joined Cases C‑581/10 and C‑629/10 Nelson and TUI Travel plc; it did so again in the subsequent Case C-11/11 Air France v Folkerts, as discussed here. Whilst there is some technical force in Karsten’s criticism, particularly as regards Sturgeon, it could also be said to ignore one of the larger themes that emerges from both transport-related chapters in the book: the European Union’s pioneer role in improving passenger rights globally. In this sense, the provisions of Regulation 2027/97/EC on accident liability as originally drafted can, for example, be seen as a clear catalyst for the renegotiation of the out-dated 1929 Warsaw Convention, which lead to the signature of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air in 1999.

At the same time, the EU institutions themselves have become much more subtle, as the recent Commission Proposal [COM(2013) 130] for a Regulation amending Regulation 261/2004 shows. The measures proposed there would not only put previous case law on secure legislative footing, but also re-balance and clarification of passenger and carrier interests; a far cry from the supposed ‘tendency to disrespecting the boundaries set to the ambition of passenger protection by uniform international law’ (p 41).

The book’s final chapter, written by its editor, returns to the broader idea of the ‘EU consumer’, asking in essence whether consumer rights should be included in future debates about the benefits associated with European Union citizenship. At first sight, there could be several advantages in such an association, not least by encouraging the Court to be proactive in its jurisprudence: the potency of citizenship continues to be clearly demonstrated, for example, in the line of cases following on from C-34/09 Ruiz Zambrano. That said, given the Court’s existing strong emphasis on the protection of passenger rights, and its resulting aggressive case law, this is unlikely to be of significant impact. Indeed, too close a link with Union citizenship might be outright harmful to the future development of passenger rights: it could lead to arguments that non-community carriers and passengers should be excluded from the scope of Regulation 261/04. In Benyon’s own words there ‘would seem therefore to be no need to search for a new legal basis for consumer protection measures’ (p 180).

There is, on the other hand, significant merit in the suggestion that furthering awareness of passenger (and other consumer) rights might be ‘a key remedy to the malaise of a large number of citizens towards the EU’ (p 163): the average passenger continues to be largely unaware aware of her rights and entitlements, despite extensive information campaigns. Whilst the volume will be useful primarily for academics and practitioners working in the area, it is nonetheless an important contribution to this process.

Dr Jeremias Prassl

Fellow, St John’s College, University of Oxford

Matej Avbelj

The EU’s intervention should be therefore exceptional, rather than a rule, and it should be exercised with self-restraint too. This is so for three reasons: the legal-jurisdictional; the reasons related to substantive democratic legitimacy; and the reasons related to the Union’s pluralist character.